This is the second in a series of open letters I’m sending to Indian Country to answer your very important questions about the settlement of the Cobell class action lawsuit. Prior Ask Elouise letters can be found on the settlement website: http://cobellsettlement.com/class/ask_elouise.php.

We also have a “frequently asked questions” section to answer many of the most common questions we’ve received. http://cobellsettlement.com/press/faq.php. I can’t answer every question, but I will try to answer as many as I can every week.

Why must the settlement approval process occur so quickly?
Time is of the essence.
If settlement is not approved in the short term, there is a very real possibility the settlement will fail and the parties will return to active litigation. First, Congress must ratify the settlement agreement before the Court can act to preliminarily approve it. In this election year, further delay will create a more challenging political environment for enactment of the necessary implementing legislation. Congress is a body made up of diverse and varied views and not all have an interest in a successful resolution of this case. Further delay will increase the likelihood that our allies on Capitol Hill focus their attention on other matters. Secondly, the Supreme Court has granted an extension of the time for the parties to submit briefing in connection with its review of the Court of Appeals decision that limits the accounting duty to “low hanging fruit.” It is unlikely that further extensions will be granted by the Supreme Court and further cou rt activity is likely to kill the settlement.

Shouldn’t you and the attorneys be traveling more to Indian Country to explain the settlement?
We have spent some time traveling around Indian Country to discuss the settlement, answer your questions and listen to your concerns, but not enough. The problem with traveling around Indian Country to explain the settlement is that it has not received preliminary approval by the Court. What this means is that there is a chance that the Court or Congress could decide to alter or modify the settlement and any information we might share with Indian Country could change, requiring that we make the same trips twice – we can’t afford to be wasteful with our limited resources. In addition, any changes to the settlement agreement by the Court or Congress may result in the settlement being abandoned by either party. Once the settlement has received preliminary approval from the Court, we will undertake an extensive notice process, including tra vel to Indian Country, to notify class members of the settlement and educate you about your rights and obligations under the agreement.

How will I know if I’m included in the settlement? You will be included in the settlement if you had an IIM account open at anytime between approximately 1985 and September 30, 2009, or you had an individual interest in land held in trust or restricted status by the U.S. government as of September 30, 2009. Certain heirs to deceased class members may be included, as well. I recognize that many individuals have particular circumstances that might make it unclear whether they are included. A process for individuals to self-identify and apply for inclusion in the class will be developed if the settlement is approved. At this stage, the most important thing you can do is to register to ensure that we have a valid address to send you important information. If you are not receiving a quarterly IIM statement, then there is a chance that the government does not have a current address for you and you should register.

How did we get from plaintiffs’ calculation of almost $40 billion a few years ago to $1.4 billion today? The $1.4 billion settlement fund for the accounting claims was the product of negotiations between the parties and is, in my estimation, a fair resolution for plaintiffs’ accounting, restitution and damages claims after considering the risk associated with further litigation, the refusal of the Court of Appeals to order the government to provide a full accounting of all funds, and the absence of any time limit for final judgment in this case. It has long been plaintiffs’ position that more than that is due. But what matters is what is recoverable in Court. The litigation could continue another decade or more with no assurance that we will prevail on the merits. Other factors could not be quantified, including the deaths of tens of thousands of beneficiaries since the filing of this case. Those class members will never see th e resolution of this case and the prospect of another ten years of litigation means that thousands more will be denied their rights too. It is important to also consider that the district court limited the award following the 2008 trial to only $455.6 million for plaintiffs’ accounting claims – significantly less than the almost $40 billion plaintiffs had requested.

As I indicated in my last Ask Elouise letter, in future letters I’ll answer questions about how much you can expect to receive if the settlement is finally approved as well as questions related to the damages class included in the settlement agreement.

Otherwise you can send me a letter to the address below. To expedite the processing of your letters our contractor has set up a post office box in Ohio, but I assure you this letter is coming from me and I will see your letters.

Ask Elouise
Cobell Settlement
PO Box 9577
Dublin, OH 43017-4877

Thank you for your commitment and patience during this long and difficult process.